SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

393 

CA 12-01383 

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND WHALEN, JJ. 

 

DAVID W. CASTOR, JR., PLAINTIFF-RESPONDENT, 

AND JANICE POISSANT, PLAINTIFF, 

V MEMORANDUM AND ORDER

LYNN J. PULASKI, PAUL W. PULASKI, 

DEFENDANTS-APPELLANTS, 

STACEY R. CASTOR, ET AL., DEFENDANTS. 

 

COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (DANIEL ROSE OF COUNSEL),

FOR DEFENDANTS-APPELLANTS.

MEGGESTO, CROSSETT & VALERINO, LLP, SYRACUSE (JAMES A. MEGGESTO OF

COUNSEL), FOR PLAINTIFF-RESPONDENT. 

 

Appeal from an order and judgment (one paper) of the Supreme

Court, Onondaga County (Anthony J. Paris, J.), entered December 14,

2011. The order and judgment, among other things, awarded plaintiff

David W. Castor, Jr., compensatory damages, punitive damages and

attorneys’ fees against defendants Lynn J. Pulaski and Paul W.

Pulaski. 

It is hereby ORDERED that the order and judgment so appealed from

is unanimously modified on the law by granting in its entirety the

motion to dismiss the complaint for lack of standing, the first and

third through sixth ordering paragraphs are vacated, and the complaint

is dismissed against defendants Lynn J. Pulaski and Paul W. Pulaski

without prejudice in accordance with the following Memorandum: David

W. Castor, Jr. (plaintiff) commenced this fraud action seeking damages

from, inter alia, Lynn J. Pulaski (Lynn) and Paul W. Pulaski (Paul)

(collectively, defendants) in connection with the probate of a

fraudulent will, purported to be the will of plaintiff’s father, David

Castor, Sr. (decedent), which was offered for probate by defendant

Stacey R. Castor (Castor), decedent’s wife. Castor was convicted of,

inter alia, the murder of decedent in connection with decedent’s death

in August 2005 of antifreeze poisoning, and offering a false

instrument for filing in connection with the purported will (People v

Castor, 99 AD3d 1177, lv denied 20 NY3d 1010). Decedent’s death was

treated as a suicide until Castor’s arrest approximately two years

later. Plaintiff is decedent’s sole heir. It is undisputed that

defendants agreed to Castor’s request that they witness decedent’s

signature on the will six weeks after his death and that they

thereafter each signed an attestation affidavit, falsely swearing that

he/she was present when decedent executed the will, that decedent
-2- 393 

CA 12-01383 

declared the document to be his will and that he/she witnessed

decedent’s signature. Castor was issued letters of administration

c.t.a. in June 2006 and filed an accounting in April 2007, valuing the

estate at $159,048.50. Castor was the sole beneficiary under the

purported will. Although plaintiff filed objections to the probate of

the will because he suspected Castor may have been responsible for his

father’s death, he testified that he withdrew those objections because

he relied on defendants’ attestation affidavits. At the inquest on

damages against Castor and the nonjury fraud trial against defendants,

the Public Administrator testified that the value of the estate was

approximately $45,000. Supreme Court awarded damages to plaintiff in

the amount of $127,118.65 and punitive damages in the amount of

$250,000 with joint and several liability between defendants and

Castor. 

We agree with defendants that the estate representative is

charged with the duty of recovering property of the estate, and that

plaintiff, as decedent’s sole heir, has no independent cause of

action, either in his own right or the right of the estate, to

maintain an action for recovery of the property of the estate, absent

extraordinary circumstances (see McQuaide v Perot, 223 NY 75, 79-80;

Gaentner v Benkovich, 18 AD3d 424, 426). Extraordinary circumstances

include collusion of the personal representative with others or an

“unreasonable refusal” of the personal representative of the estate to

commence an action (McQuaide, 223 NY at 80). Inasmuch as the

extraordinary circumstances must relate directly to the actions of the

personal representative of the estate, we conclude that the court

erred in determining that the “unique and novel circumstances” of this

case, i.e., “homicide, possible forgery, perjury, false statements,

and possible conflicts of interest,” constitute the requisite

extraordinary circumstances. Indeed, we note that the Public

Administrator testified that he was not asked to commence the fraud

action (cf. id. at 80-81), and there is no allegation that he was

involved in the alleged fraud (cf. Inman v Inman, 97 AD2d 864, 865). 

We therefore conclude that the court erred in denying defendants’

motion to dismiss the complaint against them on the ground that

plaintiff lacked standing to commence the action. We therefore grant

defendants’ motion and dismiss the complaint against them without

prejudice to the commencement of a new action by an appropriate party

within six months, in accordance with CPLR 205 (a). 

In light of our determination, we do not address defendants’

remaining contentions. 

Entered: May 9, 2014 Frances E. Cafarell

Clerk of the Court